The European Union incorporates and reshapes the European Economic Community (established in the Treaty of Rome of 1957) and renames it the ‘European Community’. This was also amended at Amsterdam and Nice.

The fundamental weakness in EU tobacco policy is that the treaty article on public health (Article 152) does not allow binding EU legislation – directives or regulations – except in areas that do not apply to tobacco (blood products, human body parts etc).Public health legislation on tobacco regulation and promotion has been shoehorned in as ‘single market’ legislation under Article 95.

Though Article 152 encourages public health measures, it explicitly does not permit harmonisation of laws of member states under this article:
152.4(c) incentive measures designed to protect and improve human health, excluding any harmonisation of the laws and regulations of the Member States.

This may not simply be an oversight – some member states are reluctant to give power to the EU by widening the scope of the treaty unless there is a benefit from pooling sovereignty – i.e. some cross border or international rationale for agreeing to be bound by a qualified majority decision of the member states. This is sometimes known as the subsidiary principle.

Like public health, consumer protection legislation is similarly constrained. Article 153 on consumer protection, promotes encouragement of consumer protection and requires it to be taken into account, but it requires the use of Article 95 on the single market for more concrete measures. It only allows legislation that is ancillary (see 3b) to support, supplement and monitor the policy pursued by the Member States.1. In order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.

2. Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.

3. The Community shall contribute to the attainment of the objectives referred to in paragraph 1 through:

(a) measures adopted pursuant to Article 95 in the context of the completion of the internal market;

(b) measures which support, supplement and monitor the policy pursued by the Member States.”

Trade-related challenges to public health measuresThe treaty is dominated by an emphasis on free trade and the single market. A particular concern is the possible use of Treaty provisions on free movement of goods and services (Article 28) to undo national public health legislation. For example, national advertising legislation could be challenged as a barrier to entry.

Article 30 allows a public health defence but the burden of proof is on the public health authority to show the measure is ‘proportionate’ and not ‘arbitrary discrimination’ or a disguised restriction on trade between Member States’.

A challenge to the Swedish law banning alcohol advertising has been brought before the ECJ using Article 28 and 30. An opinion by the Advocate General (Opinion case 405/98) concludes that there are circumstances where the treaty can be used to block national legislation…

“A national rule banning the commercial advertising of alcoholic beverages directly to the general public constitutes a measure equivalent to a quantitative restriction on imports of such beverages, prohibited by Article 30 [now 28] of the EC Treaty, and a restriction on the freedom to provide cross-border advertising services, prohibited by Article 59 [now 49]. Such a rule may be justified by reason of its aim to protect the health and life of humans from the dangers of excessive consumption of alcohol, but only in so far as that aim cannot be achieved just as effectively by less restrictive measures. A ban which extends to commercial advertising in periodicals a significant part of whose subject-matter is lawfully devoted to alcoholic beverages is in principle unnecessary and ineffective in that regard, and thus incapable of such justification.”

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